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Paddy Tipping:
I am grateful to the Minister for those helpful points. During her discussion and
investigation will she look at another asbestos-related issue—pleural plaque? A large number of cases are currently stayed, awaiting a House of Lords judgment, after 20 years of paying compensation for pleural plaque. This, too, is an issue that deserves attention.
Bridget Prentice: I know of the work that my hon. Friend has done on this matter. He has been assiduous in raising the issue with me and with others. I do not know whether it is appropriate to include that in our discussions on mesothelioma, but I hear what he says and we will certainly consider the matter.
Mr. John Greenway (Ryedale) (Con): The Minister has been extremely generous with her time, and I was reluctant to intervene, except that she has made a very important announcement: the decision that the Department for Constitutional Affairs will regulate the claims management industry. Given what she said about how that will fit with the legal services reforms planned by her Department, will she be a little clearer about the timeframe she envisages for the introduction of the regulatory framework? Given the mood of the House, does she agree that if in the meantime the unregulated claims management industry is to continue, there is a great deal more that the Law Society could and should do, through its code of conduct, to influence its members’ choice of who to work with in managing claims?
Bridget Prentice: It is not for me to second-guess the discussions of the business managers in the House about how the Bill will progress, but I think that it is our intention to have the regulations, which hon. Members will want to look at, ready by October. There will then be a transitional period during which applications will be made to the regulator, who will consider them. We hope to have the system fully operating by April 2007. I accept the hon. Gentleman’s point about the Law Society, and indeed others who already have a regulatory framework in place. They should now be looking to ensure that they take a more proactive stance on these matters. I should say that the Law Society is already taking a number of firms, particularly those involved in the coal compensation scheme, to its disciplinary tribunal. It is aware that the House takes a firm view on these matters.
Judy Mallaber: Returning to mesothelioma, I had a very sympathetic response from the Prime Minister at Question Time yesterday, and I appreciate the Minister’s remarks. I note that the Bill’s long title talks about specifying
“certain factors that may be taken into account by a court determining a claim in negligence”
and that Lord Rodgers in his strong dissenting judgment identified precisely the factor that was wrong in the Lords judgment in making liabilities several rather than joint and several, so I would have thought that it was perfectly possible to amend the Bill. Will the Minister let us know sufficiently early how the Government intend to proceed so that Members may decide whether we want to table amendments, if appropriate?
Bridget Prentice: I take my hon. Friend’s point. I know that counsel and others are looking at the decision and, as I said, if there was any way to include the matter in this Bill I would be very happy to do so. However we deal with the issue, what is paramount for the victims of mesothelioma is that we get it right. I will try to make sure that hon. Members have the advice that I am given in sufficient time for them to raise it, if they wish, later in the proceedings on the Bill.
John Mann (Bassetlaw) (Lab): On the timetable, the Government have a unique agreement with a claims handler, Vendside Ltd, signed in January 1999, plus two separate agreements with the UDM. Should the Bill receive its Second Reading, will the Government ensure that action is immediately taken to build consumer rights into the agreement with Vendside, which can be defined in law only as a claims handler? After all, the Government, as a signatory to that agreement, have property rights over it.
Bridget Prentice: My hon. Friend makes a very important point. As someone who advocates the rights of the consumer and says that we need to put the consumer at the heart of legal services, I will certainly look at the issue he raised to ensure that we, too, are compliant with the principle that I have outlined today and on a number of other occasions.
Mr. Dismore: Will the Minister give way?
Bridget Prentice: I will give way one final time.
Mr. Dismore: I am grateful to my hon. Friend; she has been very generous. On mesothelioma, we have heard a shopping list that includes Barker v. Corus and pleural plaque. There is a third injustice: the impact of the Crown Proceedings (Armed Forces) Act 1987, which excludes liability claims for those who were exposed to asbestos prior to 1987 but whose symptoms emerged many years later. Will my hon. Friend look at that Act sympathetically to see whether those who were exposed to asbestos many years ago—perhaps during military service or during civilian work for the Army or, as is more likely, the Navy—may be able to bring claims if their symptoms arose after 1987?
Bridget Prentice: We want to look at mesothelioma cases in the round. That is why I have been unable to go as far as I might like today—we must make sure that we get this right. We do not want to discover that we have left loopholes. I take my hon. Friend’s point, and I am sure that it will be considered during that discussion.
We have worked constructively with the Opposition in the other place and amendments have been made as a result. We have already published a policy statement that outlines how we intend to use the delegated powers in the Bill, and model rules that will provide an indication of the standards that are likely to be applied to organised persons. Copies of both documents are in the Library. We will be consulting on draft statutory instruments later this month while the Bill is before the House. I will ensure that copies are available to right hon. and hon. Members as soon as possible.
We have undertaken targeted consultation on our proposals to regulate claims management companies and there has been widespread support from key organisations, including Citizens Advice, which has said that it is delighted with the Bill’s tough but flexible approach to protecting consumers.
The Secretary of State’s consumer panel on legal services reform has had its remit extended to advise on the development of the regulation. The panel was set up originally to ensure that wider reforms of the legal services market were focused on the interests of consumers. It, too, is fully behind the Bill, with the wider agenda of putting the consumer at the centre of the system.
As I have said, there are many reputable claims companies, but there are also cowboys. They need to know that we will not stand for shoddy service and poor advice. Consumers deserve better than that. Through the Bill they will get a better service. I commend the measure to the House.
1.31 pm
Mr. Oliver Heald (North-East Hertfordshire) (Con): We are all grateful to the Minister for setting out the details of the Bill and it aims. It was the subject of considerable scrutiny in the other place, and I pay tribute to Lord Hunt of Wirral, who made some important improvements to it through his constructive approach. I believe that his research team, under Andrew Parker, has done a great deal of work to help with the process.
We welcome the Bill because we recognise the need to tackle the perception of a compensation culture. It is perhaps more a perception than a reality, but it is, none the less, having an important effect, and the problem of risk aversion should not be understated.
It is important that the Government are issuing guidance to public bodies on what constitutes negligence. I disagree with the hon. Member for Hendon (Mr. Dismore)—he and I, as lawyers, understand these concepts. To educate people, particularly those in public bodies who want to run school trips and the like, is a sensible thing to do. The hon. Gentleman may wish to know that the Association of Personal Injury Lawyers—APIL—has advocated such education. I would have thought that the hon. Gentleman supported that.
Mr. Dismore: The hon. Gentleman has misunderstood the point that I was making. I said that we should do as the association advocates, but I said that we do not need clause 1, which gets in the way, because it does not accurately restate what the law is.
Mr. Heald: The hon. Gentleman is right to support me in saying that we need education, but wrong to say that we do not need clause 1. It has a declaratory effect so that people know what the law is, and know that it is set out in statute. I cannot imagine why the hon. Gentleman is trying to nitpick over the wording of the clause when it has been made clear from the outset that its purpose is to declare what the existing law is, and to spread that knowledge more widely. To read the clause as though it is supposed to be a complete codification of the law, or anything of that sort, is a complete mistake.
Mr. Dismore: As the Lord Chief Justice said, we cannot encapsulate the common law in one sentence. I can only assume that the hon. Gentleman has not read the entirety of Lord Hoffmann’s judgment on the Tomlinson v. Congleton borough council case. Lord Hoffmann makes it clear that discussions on what is now called “desirable activities” should not apply where there is no genuine informed choice, such as in the case of employees. There is no exclusion within clause 1 to reflect the important qualification that Lord Hoffmann applied to it. Therefore, it does not accurately represent the law.
Mr. Heald: The hon. Gentleman is at cross purposes with me on this matter. Is he seriously saying that we should make Lord Hoffmann’s speech in the Tomlinson case clause 1? If so, I cannot agree with him. Clause 1 is supposed to be a clear statement of an aspect of the law that needs to be declared so that people can go on school trips, enjoy their scout outings and the like. We do not need to try to second-guess the judges in the way that the hon. Gentleman is suggesting. The idea that a judge is not able to decide on and explain a “desirable activity” is preposterous.
Mr. Beith: Is it the hon. Gentleman’s view that clause 1 gives to a volunteer leader or a scout master any legal protection that he does not now enjoy following Tomlinson?
Mr. Heald: It explains to that person exactly what the law is, excluding the common misconceptions that might have been encountered as a result of the perception of a compensation culture, which the right hon. Gentleman’s Committee analysed in a helpful way for us all.
Mr. Brazier: As for the Tomlinson case, the plain fact is that the lower courts have not responded in the way that the House of Lords expected. I shall be setting out in some detail later this afternoon a case in a court in Manchester that was heard during the Bill’s proceedings in the House of Lords, which illustrates the point.
Mr. Heald: There might be cases that have been decided and have received a good deal of public attention, which should have been appealed and were not. APIL has made that very point. I am interested to see the hon. Member for Hendon (Mr. Dismore) nodding.
Having accepted the point that my hon. Friend the Member for Canterbury (Mr. Brazier) makes—we will all be keen to hear what he has to say because he has led the campaign in the House for a clear statement of the law in statute, and I congratulate him on that—we, like the Government want to see the balance struck correctly. That should ensure that people are properly compensated in genuine cases of negligence. However, we need to discourage a culture in which people are encouraged to pursue trivial or spurious claims in the belief that that will make them a great deal of money, either through awards by the courts or under out-of-court settlements.
We believe some parts of the Bill could benefit from greater clarity. I will table amendments to clause 1. I hope that we can proceed on a basis of consensus to try to produce a Bill that has overwhelming support in the House.
Mr. Greenway: Does my hon. Friend think that some clearer definition of what “desirable activity” means will be helpful or otherwise?
Mr. Heald: My view is that the courts are capable of deciding what is or is not a “desirable activity”. The expression comes from the very judgment to which the hon. Member for Hendon referred. The use of certain words in clause 1, including “particular” in several places, needs examining further. I shall table amendments on that point.
Mr. Dismore: Will the hon. Gentleman give way?
Mr. Heald: I think that I have given way sufficiently to the hon. Gentleman.
Lembit Öpik: The hon. Gentleman will be aware that there has been considerable consultation with many voluntary organisations that regard clause 1 as materially beneficial to them. Does he agree that in Committee we need to examine in great detail the question that he has raised, in addition to other questions of definition that have been bouncing around the Chamber? As we all agree with what we are trying to achieve, the crucial question is whether a measurable difference will be made to the organisations for which the Bill has primarily been tabled. I hope that the hon. Gentleman feels that we can find consensus on that.
Mr. Heald: I agree. There is no doubt that we are getting to the point where we need clause 1, which is a clear statement of the law and something around which we can all rally.
Tony Lloyd: The hon. Gentleman has said that he, on behalf of the Opposition, is looking constructively to improve the Bill. In that sense he accepts the general spirit of what the Bill is designed to achieve. We have debated mesothelioma, and it is difficult for people to accept the Barker judgment. What is the Opposition’s position—will they support the Bill if an amendment is tabled to reverse that judgment? Do the hon. Gentleman’s colleagues in the House of Lords share that position?
Mr. Deputy Speaker: Order. Before the hon. Member for North-East Hertfordshire (Mr. Heald) responds, I should say that we are in danger of reaching a stage where the Bill will not need to go into Committee. I appreciate that this is a detailed matter, but I should be grateful if he were not drawn away from the basic content of the Bill, and did not express a view on what it might include.
Mr. Heald:
The Bill tries to deal with the way in which the law of negligence operates, as the hon. Member for Manchester, Central (Tony Lloyd) suggested in the case of mesothelioma. Mesothelioma cases should be dealt with rapidly, preferably out of court because, given the terminal nature of the condition, people with a diagnosis have only a short time—often, only 12 to 18 months—in which to act. A speedy out-of-court scheme is the best way forward. Many victims of mesothelioma cannot make a claim, because they do not know who
was their former employer’s insurer. I am happy to hold discussions on Barker with the Minister once she has received legal advice but, in addition, we must try to improve the tracing service so that more people can make a claim. On the question of who pays, it is the people who did wrong in the first place and their insurers who should do so.
I accept that it is important to provide a simple, workable procedure, but one of the problems with Barker is that people have evaded their responsibilities —[ Interruption. ] Well, we must try to find ways of making insurance companies trace their records. Better insurance companies already do so, but we must encourage others to take action, too. We are keen to enter into constructive discussions with the Government on the Barker judgment once they have received advice, but more needs to be done.
Mr. Clapham: Is the hon. Gentleman therefore in favour of a no-fault liability scheme financed by the insurers and administered by Government to deal with mesothelioma?
Mr. Heald: The hon. Gentleman has got the facts wrong. The main liability does not fall on the insurers but on the Government, as claims are made against the Ministry of Defence, schools and so on. There is therefore a case for Government, insurers, and companies that cannot trace previous insurers to come together in a simple scheme. This is an urgent problem, because of the speed with which the condition progresses, but it will be with us for a very long time indeed. Most estimates suggest that mesothelioma cases will peak in 2020, which is a long way away so, for the future, it is important to introduce a simple system that works. I hope that the Government can act as an honest broker, but we should also bear in mind the fact that they have an interest, too. As I said, however, we are prepared to take a constructive approach.
In addition to the Constitutional Affairs Committee, which produced an excellent report, may I thank the Better Regulation Executive, which has served us well by publishing a very good report, “Better Routes to Redress”? That report cited a survey of 212 councils in England and Wales carried out by Zurich Municipal and the Local Government Association, in which 85 per cent. of respondents agreed that the
“introduction of conditional fee arrangements has increased the annual cost to my authority of handling compensation claims”.
In addition to the abolition of legal aid for personal injury cases, the growth of claims management companies has fuelled the development of a compensation culture. The Constitutional Affairs Committee concluded that introduction of conditional fee arrangements and a class of unregulated intermediaries acting as claims managers have
“adversely affected the reputation of legal services providers. The increased awareness of the public that it is possible to sue without personal financial risk, when combined with media attention to... unmeritorious claims being brought, has contributed to a widely held opinion that we do indeed have a compensation culture”.
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